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to favor and two to oppose the Constitu The truth is, the radical claims simply tion.

cannot, even when supported in part (and

wrong deductions are often drawn from corThe Judicial Veto.—The function of the

rect statements) by the writings of noncourts in declaring void legislative acts

Socialists, stand the light of the facts. which violate the limitations of federal and state constitutions has been regarded by W'as the Constitution Forced Upon the many people with impatience, distrust, and People?- Jack Carney's paper "Truth" open hostility.

(shades of Diogenes!) on September 19,

1919, printed an editorial on Constitution It is commonly asserted that the power

| Day, saying that "it is a mockery for us to was unjustifiably assumed by the Federal

even mention Constitution Day, much less Courts, as it was never intended by the celebrate it."

should be allowed to exercise this func Carney, the Communist, then said: “Altion. In other words. John Marshall in | ter the Constitution had been formed, the 1803 without any express or implied war next step was to have it ratified by the rant from the Constitution announced that people. Out of a population of 3,000,000 the courts could declare laws unconstitu not more than 120,000 were entitled to vote tional.

for those who were to constitute the state

conventions that were to consider the ConOf the fifty-five members of the conven

stitution. Due to the fact that property tion which framed the Constitution, only

qualifications shut out the working class of thirty-nine took an active part in the pro

the cities and the debtors of the back counceedings. Twenty-five of these, beyond the

try.” Again: “It was forced upon the shadow of a doubt, believed that the courts

people of this Republic by another trick, should, and would have the power to de

namely, that of granting the vote to those clare unconstitutional acts null and void.

who possessed property and allowing only So the courts in declaring laws invalid have

those who had property to vote for its ratonly exercised a power it was the inten- Lifi

ification or rejection.” tion of the constitutional convention to give them.

An examination of the facts brought out

| in Beard's “An Economic Interpretation of This was understood by the members of

the Constitution of the United States,” the the Constitutional convention and of the

book quoted by Broms and other agitators, ratifying conventions in the various states. From 1778 to 1787 there were at least eight

brings out some mighty interesting facts states in which laws were held to be uncon

-facts not nearly so damaging as the gen

eral claims made by Beard and the radi stitutional, so this was no principle con

cals. ceived in the "diabolic" brain of the “archimp, John Marshall.” And before 1803, Suffrage and the Constitution.-On page when the famous case of Marbury v. Madi | 250 Beard says that 160,000 voters “ext son occurred, in which Marshall said the i pressed an opinion one way or another 01 courts could declare laws unconstitutional, the Constitution.” This is one-third more there were nine Federal precedents which than Carney admits—but why should a pajustified Marshall in making that state

per named “The Truth” be asked to subment.

stantiate any statements it makes? Any Beard also brings out some very interest - thank our lucky stars that these people ing stuff on this question of "property didn't go to the polls! In Boston, for inqualifications" mentioned by Carney. (1) stance, 2,700 men were entitled to vote—but The states generally adopted just the same only 760 turned out to pass upon the quesqualifications already imposed on those who tion of adoption of the national Constituvoted for members of the lower branch of tion; half as many as voted for governor the state legislatures. (2) New York was at the next election. the only state where no property qualifications were used in voting on delegates to

way, such papers believe that 90 per cents (4) For specific proof of this and the follow fiction and 10 per cent facts make much ing statements see a study by the author in the American Law Review, September-October. 1917. more interesting reading.

Why does not the Socialist inform you the ratifying convention. (3) "Nothing

that of the 160,000 who did go to the polls like the same proportion was disfranchised

100,000, five of every eight, voted in favor as would be today under similar qualifica

of the Constitution? (Beard, p. 250.) tions." (4) "Dr. Jameson estimates that

· Who Opposed the Constitution?-Says probably one-fifth of the adult males were

Beard: "The debtors everywhere waged shut out in Massachusetts, and it would

war against the Constitution.” Why? probably be safe to say that nowhere were

"The debtors knew that they would probmore than one-third of the adult males dis

| ably have to settle their accounts in full and franchised by the property qualifications." !

the small farmers were aware that taxes No restrictions in New York; only one would have to be paid to discharge the fifth disfranchised in Massachusetts; not national debt if the Constitution was adoptmore than one-third in any state disquali | ed.” How did this national debt arise ? fied—this is very far from supporting From the expenses of the Revolutionary claims such as Carney's that the Constitu | War. Many patriots invested their all in tion was adopted because the great mass government securities to enable this counof the people were not “entitled to vote.” try to become free. We owed money to He says only 120,000 were so entitled; ac

France and Holland. For one, I applaud tually 160,000 did vote, and many, many those Americans who voted for the Conmore than one-third in any state disquali stitution and to pay the just debts of this sample of the kind of lies spread by “The country. Personal and national accounts Truth” and kindred radical publications. should be paid in full.

Why did only 160,000 vote for delegates We are also told that opposition to the to the state conventions? Beard says (p. Constitutions came “from the areas in 242): "Far more were disfranchised | which debtors had been formulating paper through apathy and lack of understanding money and other depreciatory schemes.” of the significance of politics. It is a note- Yes, the people who had flooded the counworthy fact that only a small proportion of try with worthless paper money and other the population entitled to vote took the schemes to pay their debts with valueless trouble to go to the polls until the hot po- securities and who wanted to force others litical contests of the Jeffersonian era.” | to take this stuff at its face value objected Yet the Socialists and Bolshevists of Amer- i to being forced to “toe the mark.” They ica register a mighty wail because the peo- were willing to force others to take worthple too apathetic to vote and those not un- less notes in payment of accounts; they derstanding the questions they would have were not willing to come to time and give voted on did not go to the polls and select value received themselves. delegates to ratify or reject the Constitution of the United States. We should (6) Beard, p. 244.

(7) P. 252. (5) Pp. 240-242.

(8) Beard, p. 291.

Yet the Socialist, parlor and cellar, wants | about half a million, had only $6,246 of us to waste our sympathy on these two these bonds. classes who wished to avoid honest pay The leading opponents were William ment, and to believe that because the Con Patterson, John Dickinson, Gerry, Luther stitution was not defeated in their interests Martin, Ellsworth, and W. S. Johnson. that it is, therefore, a scheme of Satan, These men held $87,979.90 of government represented in the United States by such bonds (Beard's own figures). One of men as Washington, Franklin, Hamilton them, Gerry, is believed to have held much and Madison.

more than the $30,000 he is known to have Advocates of the Constitution. Beard

owned. The six chief opponents of the informs us that "large security holders," Constitution held four times the amount meaning the holders of government bonds,

of government bonds that the six leading "must have formed a very considerable dy

advocates owned. namic element, if not the preponderating

These figures certainly do not prove a element, in bringing about the adoption of

lack of patriotic endeavor on the part of the new system.” Men with “actual econo

the men trying to solve the dangers of the mic advantages at stake” were “the lead

period. ing champions of the new government."

Conclusion.—Political interests, as well Well, what of it? Does this prove that the

as economic interests, were at stake in the new government was a bad thing? One

formation of a strong government for this trouble with our Socialist friends is that

country. I wonder if what the Socialists they can't imagine people doing anything

really object to is not that such a really contrary to their economic interests, sim

strong and efficient government was estabply because of a desire for good govern

lished that they are having more difficulty ment, from altruistic motives of any kind.

in overthrowing it than they anticipated? Because the men who held government

During the days of the Articles of Conbonds, and had risked their money to free

federation following the Revolutionary this country from the yoke of a hated op

War political government became as dispressor, wanted to make them worth 100

organized as did the financial policies, and cents per dollar of face value, the agitators

as paralyzed as the trade situation. If this want us to believe that the Constitution

nation were to survive and prosper a strong they favored was, according to Carney,

and cohesive government was necessary. "framed expressly for the ruling class.”

Just such a government was established. The truth compels us to say, however,

The wisdom of a policy or movement is that Beard fails to prove that the leaders in

determined by its results. The American the movement for a stronger government

Constitution when weighed by results with were influenced by their financial interests

any other organ of government, the wide rather than by a desire to promote the pub

world over, need fear no comparison and lic welfare. In the Constitutional Convention the six

no equals.

Americans must wake up and demonchief leaders (according to Beard) in the

strate by facts the untruths and misrepremovement for a strong central government

sentations spread broadcast by the agitawere Madison, Hamilton, Wilson, Wash

tor. Constant reiteration of statements is ington, Gouverneur Morris and Charles

effective, and we must see that untrue statePinckney. These six held government

ments regarding our government do not go bonds to the stupendous sum of $21,046.

unchallenged. George Washington, with a fortune of

NOEL SARGENT. (9) P. 290.

1. Minneapolis, Minn.

[blocks in formation]

Supreme Court of Ohio. Jan. 27, 1920.

"Such clause (for future advances- can only be tolerated in any sense upon the ground that

it advises subsequent mortgages or purchasers 126 N. E. 820.

that future advances were contemplated, and enables him by inquiry to ascertain the extent

of the incumbrance." (Syllabus by the Court.)

The mortgage here in question fulfills the

conditions thus expressed, and apparently ar A mortgage, duly recorded, given for definite future advances, which the mortgagee is obli

least takes the case out of the authority of gated to make, is entitled to priority for the full Spader v. Lawler. Certain it is the actual deamount of such advances over a subsequent

cision in the above case was made with refermortgage, recorded after the former one, though

ence to future advances, neither the amount prior to the making of such future advances. Spader et al v. Lawler, 17 Ohio 371, 49 Am. Dec. nor the purpose of which was specified in the 461. distinguished.

instrument. Moreover, there was not involved

in that case the question of future advances MERRELL, J. The question to be deter

which the mortgagee was under obligation to mined is whether a mortgage for future ad

make. vances which the mortgagee obligates himself

In the instant case, the situation is radically to make is entitled to priority in distribution

different. The record of the earlier mortgage to a later mortgage, recorded after the former

was notice to the world that the mortgagee one, but prior to the making of the future ad.

therein had obligated itself to loan the mort. vances or part thereof.

gagor a certain sum upon the faith of the title It is the contention of plaintiff in error that

as it then was. Upon what principle, then, his mortgage, though later in time of execution

of equity or public policy, can it be said that and record than the mortgage on the same prop

such mortgagee must again search the records erty to defendant in error, is postponed to the

before making each advance to the mortgagor?

The search would be a vain thing, since the latter only to the extent of advances actually made at the time his (plaintiff in error's) mor:

advance or further loan would remain obliga

tory, whatever the state of the title disclosed. gage was placed on record. Such record, it is argued, is notice with respect to which subse

On the other hand, the grantee in the later

mortgage has notice by the record that the quent advances under the earlier mortgage must be taken to have been made, and to which

proposed security for the later mortgage roan

is already incumbered, not merely by way of they are to be postponed. This position is based upon the case of Spader et al. v. Lawler,

contingency or expectancy, but for a definite 17 Ohio, 371, 49 Am. Dec. 461, which presentea

purpose under a fixed obligation. Under such a state of facts differing from the present case

circumstances, the junior mortgagee will not be

heard to urge what may be termed a speculative chiefly in that the mortgage was given to se

priority to such advances under the senior cure

mortgage as turn out to have been made sub"any other sum or sums of money which the

sequent to the recording of the Junior mortsaid Bonsal may be owing, or indebted in, to gage. Indeed it may be said with accuracy that the said Lawler.”

where the senior mortgagee has bound himself It was held that notes given by Bonsal to l to make advances for a clearly defined object, Lawler, and secured by the mortgage referred i he immediately becomes a bona fide purchaser to, issued after the recording of Bonsal's later I to the full amount of his contractual liability, mortgage to Spader, would be postponed to the ¡ exactly as if the entire consideration had lien of the Spader mortgage. In deciding the i passed on the execution and delivery of the case the court made it quite clear that it pro- 1 mortgage. 1 Jones on Mortgages (7th Ed.) § ceeded upon the theory of giving full effect ! 370. to the recording statutes. Read, J., speaking ! In the present case the record does not disfor the court, asks at page 379:

I close an obligation in terms on the part of

the mortgagee to advance to the mortgagor mortgage or incumbrance from the time when the amount specified in the instrument. How some debt or liability shall be created, or some

binding contract is made which is to be secured ever, the purpose of the loan, as stated in the

by it. Until this takes place, neither the land, mortgage itself, was "to improve the premises

nor the parties, nor third persons are bound by described (and) to pay off prior incumbrances it. It constitutes of itself no binding contract. thereon," and it is expressly agreed between

Either party may disregard or repudiate it at his

pleasure. It is but part of an arrangement merely the parties that "the funds secured by this

contemplated as probable, and which can only mortgage may be paid out by the mortgagee be rendered effectual by the future consent and as provided in section 8321--1 of the General further acts of the parties. It is but a kind oi Code of Ohio;" that is to say, to mechanics

conditional proposition, neither binding nor in

tended to bind either of the parties, till subseand materialmen. Under these stipulations,

quently assented to or adopted by both." and in the absence of other evidence, an in

We do not see how it can have the necessary ference of fact arises that the mortgagee oblı

mutuality of a contract, unless the mortgagee i gated itself for the purposes and in the amount bound to proffer a certain amount of money at stipulated.

a certain time and the mortgagor is bound also

to accept it. And it seriously may be doubted The present case, therefore, falls within the

whether a corporation has any power thus to application of the principles above stated. The bind itself under ordinary charter powers. The authorities in this country on this subject, obligation is largely speculative in its nature, or otherwise in considerable conflict, support the

might be. reasoning here given with almost entire unan In McClure v. Roman, 52 Pa. St. 458, there imity. Included are those jurisdictions where

was an agreement to protect mortgagees "in any

future debts mortgagees may incur for any use," the case of Spader v. Lawler, supra, has been

and the Court said: “It is clear, therefore, that followed. Ladue v. Detroit & Milwaukee Rd. any future liability if incurred by either of the Co., 13 Mich. 380, 87 Am. Dec. 759; Boswell obligees, would not be by any contract under v. Goodwin et al., 31 Conn. 74, 81 Am. Dec. 169,

which they were obliged to incur them, but would

be of an entirely voluntary character. It was and Moroney's Appeal, 24 Pa. 372.

said this agreement came under the ruling in For the reasons assigned, the judgment is Bank of Montgomery County's Appeal, 12 Casey

170, where it was said of a mortgage that: "Its affirmed.

object was to secure not only present but future Judgment affirmed.

advances by the Bank of Montgomery County,

which future advances they were under no conNICHOLAS, C. J. and JONES, MATTHIAS, |

tract to make, but which was at their own option JOHNSON, and WANAMAKER, JJ., concur. I to make or not, as they thought proper."

In Gilliam v. Barnes, 123 Mich. 119, 82 N. E. NOTE--Mortgage for Present and Future Ad 38, the Ladue case supra was distinguished by vances Obligatory in Their Nature.—The instant saying the mortgage in that case was to indemnity case holding that a first mortgage for present and for any indorsements mortgagees "might make future advances retains its priority over subse- | for the mortgagor and for any advancements quent mortgage, though this be taken before the they might make him," but in the case at bar "the future advances are made, if there is an obliga amount named in the mortgage was a definite tory contract for the future advances, has found amount, payable at a definite time : so the subsesupport in many cases.

quent mortgagees were advised fully of the conSome of the cases which hold to this view pro

ditions." ceed upon the theory that the prior mortgage is In line with the Ladue case is Babcock r. not affected by constructive notice of the record, Bridge, 29 Barb. 427. as this affects only subsequent incumbrances. Tapia v. Demartini, 77 Cal. 383, 19 Pac. 641,

But in Jones on Mortgages, $8373, the rule that 11 Am. St. Rep. 288; Schmidt v. Zahrndt, 148

a recorded mortgage expressed to cover future Ind. 447, 47 N. E. 335; Bunker v. Barrow, 93

advances has priority, is said to be well supMe. 87, 44 Atl. 372.

ported, if it contains enough to show a contract

between the parties that is to stand as a security But it has been held that the rule as to mort to the mortgagee for such indebtedness as may gagee not being bound by recent notice is not by arise between the parties and record thereof imany means universally recognized. The latter rul parts notice to subsequent incumbrances. There ings go upon the theory that as a mortgage is are a number of cases cited, among which are merely security for payment of money it can have those cited in the second paragraph of this note. no effect on third parties unless the record discloses what is actually due. Spader v. Lawlor,

It seems to me that the cases to the contrary 17 Ohio 371, 49 Am. Dec. 461; Stone v. Welling,

are the better reasoned. As it is there is enough 14 Mich. 514; Wicklin v. Betts Spring Co., 11

uncertainty in the record as to what and for how Ore. 405, 5 Pac. 1, 50 Am. Rep. 477.

much it really stands for. Our recording laws

ought to require a periodical showing on this. In Ladue v. Detroit, etc., R. Co., 13 Mich. 480, or a mortgage may stand to the end just as it 87 Am. Dec. 759, it was said by Christiancy, J., was first given. that "the instrument can only take effect as a

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